The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTIONS, GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING COMPLAINT
Plaintiff, Charles Kyle Goldsmith, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. In his complaint, Goldsmith alleges that the defendants "acting in harmony" have deprived him of access to the courts in violation of his constitutional rights. Goldsmith is incarcerated at the Mike Durfee State Prison in Springfield, South Dakota. Goldsmith moves to recuse Chief Judge Karen Schreier from this case. Goldsmith also moves for leave to proceed in forma pauperis, seeks a permanent injunction regarding legal copies, and moves to amend his complaint to add two additional defendants, Diane Romkema and Tammy Doyle.
Goldsmith moves to recuse Judge Schreier from hearing his case.
Goldsmith asserts that Judge Schreier should recuse herself because she "has a longstanding relationship with the South Dakota Attorney General Marty Jackley and his family" and that relationship will cause Judge Schreier to "show prejudice to relator/plaintiff." Docket 5 at 1. Goldsmith also asserts that recusal is appropriate because of a purported conflict of interest arising from Attorney General Jackley's service as United States Attorney and resulting appearances in Judge Schreier's court. Id. at 2. Goldsmith's third allegation is that he "can obtain affidavits from well known drug dealers who can attest to the fact that certain members of the Jackley family (to be revealed in these Affidavits) have received special favors/protection from Judge Schreier in concert with Marty Jackley to overlook criminal wrong doing (drug deals)." Id. Goldsmith did not submit any affidavits or allege any specific facts in support of his allegations of bias.
28 U.S.C. § 455(a) requires a judge to recuse herself in "any proceeding in which [her] impartiality might reasonably be questioned." If the facts Goldsmith alleges were true, that would certainly be the case. But "[a] judge is not required to withdraw from hearing a case upon a mere suggestion that the judge is disqualified to sit, and it is improper for the judge to do so unless the alleged cause of recusation is known by the judge to exist or is shown by proof to be true in fact." 48A C.J.S. Judges § 316 (emphasis added). Goldsmith's wild, untrue, and unsupported accusations that Judge Schreier conspired to help members of the Jackley family avoid prosecution are insufficient to disqualify Judge Schreier.
Section 455(b) also requires a judge to recuse herself where "[s]he has a personal bias or prejudice concerning a party[.]" Goldsmith asserts that Judge Schreier's relationship with Attorney General Jackley would cause her to be biased against Goldsmith. While the South Dakota Attorney General's office does represent Mike Durfee State Prison in some cases, Judge Schreier has no personal relationship with Attorney General Jackley that would cause her to be biased against Goldsmith. Most importantly though, Attorney General Jackley is not a party to this case. "A showing of bias against a party as opposed to counsel . . . is required under section 455." Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647, 653 (8th Cir. 1991). While bias for or against an attorney can be imputed to a party in certain cases, the present case is not one of them. Id. at n.6 (explaining that bias may be imputed if it is shown that the attorney and party share a certain characteristic, such as race, that is the source of bias and noting that courts require proof that the alleged bias against the attorney also caused bias to the party). Accordingly, Goldsmith's motion to recuse Judge Schreier is denied.
II. In Forma Pauperis Motion
The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires prisoners to make an initial partial filing payment where possible, even if in forma pauperis status is sought. "When an inmate seeks in forma pauperis status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan." Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (internal citations omitted). Determination of the partial filing fee is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
Goldsmith has indicated that his average monthly deposits equal $44.97 and his average monthly balance is $15.60. Thus, Goldsmith must make an initial partial payment of $8.99 which is 20 percent of $44.97. Accordingly, Goldsmith is granted in forma pauperis status.
But the inquiry does not end there. The PLRA also requires this court to "screen" Goldsmith's complaint to determine whether it should be dismissed. Section 1915 provides an action must be dismissed if the court determines the claim "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; ...